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DHS releases final STEM OPT regulation

9 Mar 16

UNITED STATES

The Department of Homeland Security has released the text of its final regulation expanding the extension of Optical Practical Training (OPT) for foreign students with science, technology, engineering, and mathematics (STEM) degrees.

The rule, titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” will be published in the Federal Register on Friday, and will become effective May 10. DHS first proposed the rule on Oct. 19, after a federal judge determined that the previous rule authorizing the STEM extension must be invalidated. DHS made several changes to the proposal in response to the more than 50,000 comments that the agency received.

Eligibility for STEM OPT Extension

As in the proposed rule, DHS will reinstate the STEM OPT extension and increase it from 17 months to 24, for a total of up to 36 months. Under the final rule, certain students will qualify for an extension based on a prior eligible STEM degree obtained in the U.S., and F-1 students who enroll in a new academic program and earn a qualifying advanced STEM degree will be able to apply for one additional extension. The rule also clarifies which fields of study and educational institutions qualify for the extension.

Employer Obligations

The final rule imposes new obligations on employers, but reduces some of the requirements that DHS originally proposed. Before a designated school official can recommend a STEM OPT extension for a student, the student and employer must complete a new Form I-983, “Training Plan for STEM Students.” The employer must attest that:

The employer has sufficient resources and personnel available and is prepared to provide appropriate training in connection with the specified opportunity.

The student on a STEM OPT extension will not replace a full- or part-time, temporary, or permanent U.S. worker.

The student’s opportunity assists the student in reaching his or her training goals.

Employers must provide the student and similarly situated U.S. workers with commensurate terms and conditions of employment. Instead of requiring the student’s immediate supervisor to sign the training plan, the final rule allows any employer representative with signatory authority to sign. Additionally, employers may satisfy their training plan obligations through their existing training programs if they meet the rule’s requirements.

Government Enforcement

While the proposal would have allowed DHS to conduct unannounced employer site visits, the final rule requires that employers be notified 48 hours in advance. However, DHS does not need to provide notice if a complaint or other evidence of the employer’s noncompliance triggers the investigation. Employers must report to the designated school official within five business days if the student ceases employment (instead of 48 hours as previously proposed). Students will be required to submit annual self-evaluations to the official and confirm the validity of the information provided in the Student and Exchange Visitor Information System every six months.

Grace Period for Students

F-1 students may currently be unemployed for up to 90 days during the initial OPT period, and an additional 30 days if they receive the 17-month STEM extension. This rule retains the 90-day maximum period during initial OPT and allows students who obtain 24-month STEM extensions an additional 60-day grace period, for a total of 150 days.

E-Verify and H-1B Cap Gap

The rule retains multiple provisions of the previous rule, including E-Verify requirements for STEM OPT employers, and “cap-gap” protection allowing DHS to extend F-1 status for students whose H-1B status will become effective Oct. 1 of the following fiscal year.

Transitional Rules

Applications for the STEM OPT extension that are filed and approved before the May 10 effective date will be evaluated under current rules. However, for applications that remain pending on that date, DHS will request evidence from applicants that they meet the requirements for the new 24-month extension. The rule outlines procedures by which certain students currently working in the U.S. on the STEM OPT extension may apply for an additional seven months of OPT.

BAL Analysis: Employers are reminded that this rule will not go into effect until May 10. The publication of this final regulation will avert the disruptions that would have occurred if the current rules had expired without a new rule in place. BAL worked with clients and business immigration trade associations to submit comments to DHS on the proposed rule and welcomes the agency’s adoption of many of the recommended changes. BAL will provide additional analysis of the rule in the coming days.